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United States v. Liu

United States District Court, D. Montana, Great Falls Division

February 7, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DOUGLAS MONTGOMERY LIU, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE.

         Defendant/Movant Douglas Montgomery Liu moves this Court to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. (Doc. 345.) Liu is a federal prisoner proceeding pro se.

         I. Preliminary Review

         The Court must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief” before the United States is required to respond. 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). The Court should “eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         A grand jury indicted Liu and five co-defendants on March 3, 2005, on one count of conspiracy to commit a robbery affecting interstate commerce, a violation of 18 U.S.C. § 1951(a) (Count 1); one count of robbery affecting interstate commerce, a violation of 18 U.S.C. §§ 1951(a) and 2 (Count 2); and one count of brandishing a firearm during and in relation to the crime alleged in Count 1, a violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count 3).

         Liu fled to Mexico where he remained for approximately ten years. Liu appeared in this Court on September 8, 2015, following his extradition. See (Doc. 261). He pled guilty to Count 1, the conspiracy count on November 2, 2015. The United States agreed to dismiss Counts 2 and 3 and to recommend a three-level reduction in the advisory guideline calculation for acceptance of responsibility in exchange for Liu's plea of guilty to Count 1 of the Indictment. (Doc. 273 at 2, 6.)

         At sentencing, the controlling guideline, U.S.S.G. § 2B3.1, required application of the murder guideline because one of Liu's co-defendants had stabbed and killed a man in the course of the robbery. This required application bumped the base offense level to 43. See U.S.S.G. §§ 2B3.1(c)(1), 2A1.1(a); 18 U.S.C. § 1111(a) (defining murder perpetrated in the course of committing robbery as first-degree murder).

         Liu also received a two-level enhancement for obstruction of justice to reflect Liu's flight to Mexico. The Court granted a three-level downward variance in Liu's offense level to recognize his acceptance of responsibility and timely notification of plea. The total offense level was 42. Liu earned a criminal history category of I. Liu's advisory guideline range was 360 months to life in prison. The statutory maximum of 20 years, or 240 months, superseded the guideline range. See U.S.S.G. § 5G1.1(b); (Doc. 292 at 1 § III.)

         The Court sentenced Liu on February 17, 2016, to serve 196 months in prison, with three years of supervised release to follow. (Docs. 290, 291 at 2-3.) Liu voluntarily dismissed his appeal after having received a reduced sentence. See Order at 1, United States v. Liu, No. 16-30054 (9th Cir. Sept. 18, 2017).

         Liu's conviction became final on December 17, 2017, at the earliest. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on August 23, 2018. See 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

         III. Claims and Analysis

         A. Ineffective Assistance of Counsel

          Liu first alleges that his attorney violated his Sixth Amendment right to the effective assistance of counsel when he failed to challenge the ...


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